Criminal Law Theory - A New Norwegian Approach

For further information, please see description below or contact:

 

Post. doc., ph.d. Jørn RT Jacobsen
- project leader, responsible of administration of  
  programme and fundings
  jorn.jacobsen@jur.uib.no

 

or

 

Post. doc., juris dr. Linda Gröning
              - responsible of external cooperation                     
 linda.groning@jur.uib.no

 

 

The programme is funded by

 

Bergen Research Foundation https://www.uib.no/bfs/index.htm 

Faculty of Law, University of Bergen www.uib.no/jur

The University of Bergen www.uib.no

 

 

(Revised) Research Plan for the Programme

 

Criminal Law Theory – A New Norwegian Approach is an attempt to move the Norwegian criminal law and criminal law science, forwards in a more theoretical direction than what has been the traditional approach. The programme is composed of three post.doc.-positions. Due to the programme’s ambition of engaging the Norwegian criminal law science in the international discussion, the programme is carried out in English. The first two projects will start the 1^st of March, 2009. The start of the third project is currently unknown due to the fact that this position is not yet filled.

 

 

 

Background and Motivation of the Programme

 

The Norwegian, and to a certain extent one could even say Nordic, legal tradition has for a long time been built upon a view of law as a social instrument to be used by the lawmaker in order to steer the society in desired direction. This has not least connections to the welfare state, but has also much older historical roots. Part of this legal ideology is a pragmatic view upon knowledge and, closely connected, a utilitarian and positivistic view upon law. Law is what is useful, and the decision of what is useful is to be made by the democratically elected lawmaker.

 

This legal ideology has also been the foundation of the Norwegian criminal law science. In fact, the founder of this discipline, Anton Martin Schweigaard, was also a dominating politician. In his youth he travelled in Europe, studying philosophy, and developed a deep disregard for the contemporary German philosophy, especially for the Idealism of Kant and Hegel. He turned then towards the empiricism and utilitarianism of English philosophy and from that starting point he very much founded the Norwegian criminal law science. His ideas have from then on continued to make impact. Such impact was not least made on the leading figure of the 20^th century, Johs. Andenæs, who very much re-stated Schweigaard’s pragmatic view through adherence to contemporary philosophical ideas like the logical positivism and moral emotivisism (especially the Dane Alf Ross made impact on him). A common strain through the Norwegian criminal law science, seen apart from first and foremost the intermezzo of Francis Hagerup’s writings on criminal law, is the rejection of theoretical analysis as “constructions without merits”, as Andenæs once stated it.[i]

 

All the mentioned philosophical and wissenschaftstheoretische viewpoints do have their merits. However, they are also, each in their own way, deeply problematic. Not least does these ideas become problematic as they turn, as they seem to do in the Norwegian criminal law science, towards a “pragmatic-pragmatic” attitude, where one accept the pragmatic starting points as “self-evident” and not even worth theoretical investigation in themselves. Only to a diminishing degree can one find open reflection and discussion on the tasks of the criminal law science, the concept of knowledge etc., among the leading contemporary Norwegian criminal law theorists. This situation can be said to be threatening to the scientific status of the criminal law science itself. It also deprives the discussions on the criminal law of enlightening perspectives.

 

The programme Criminal Law Theory - A New Norwegian Approach, starts, as its name give a clear indication of, from quite different starting points. In short, the programme is based on the view that both theoretical and normative analyses are fruitful and necessary parts of an adequate understanding of the criminal law, its content and its limits. It is seen as an important scientific task not just to contribute to the construction and maintenance of the criminal law system, but to develop deeper understanding and perspectives of the criminal law. The programme thereby turns not only towards other criminal law traditions like especially the German and the Finnish traditions, but also towards other fields of knowledge, like philosophy, sociology and psychology, for inspiration and enlightenment.

 

As the deeper foundation of this view is one of the central tasks of the programme itself (see further below), this foundation is not to be described further here. However, the main reasons, which together could be described as the programme’s ideological foundation, to develop a theoretical approach to the criminal law in the criminal law science, are to be shortly described.

 

First of all, the programme is motivated by a desire to supply the criminal law science with more adequate foundational premises. An adequate theoretical grounding is an important starting point in order to develop more systematic investigations into the different parts of the criminal law. In other words, the programme is motivated by a future improvement of the quality of the Norwegian and Nordic criminal law science more generally. Further on, the independent goal of constituting a more theoretical attitude or approach to the criminal law is in itself an important answer to the question of why one should carry out this programme, as this is fundamental for the scientific status of the criminal law science. The constitution of a more scientific character of the criminal law science is not least a very important task in light of the worrisome development of the criminal law. It is a well known fact that Nordic criminal law is, at least from our perspective, rational and humane. This view is an adequate position in a democratic Rechtsstaat securing the autonomy of the individual. This tradition is, however, seriously threatened by strong desires, both on national and international levels, for a higher level of repression and functional efficiency, resulting in increasing social control and exclusion. It is, in light of this development, of fundamental importance to maintain the scientific independence of the criminal law science and protect it from becoming some sort of blind contributor to this development, as the pragmatic tradition risks becoming. This independence is secured, first, only by serious reflections on the character of science itself. Further, here, as elsewhere, we have to rely on the quality of our arguments, which, in turn, is dependent on our ability to produce arguments along other lines than just pragmatic ones. The pragmatic approach is not capable of dealing with this challenge. A further motivation is to access Norwegian criminal law scientists in a more qualified way to the international discussions. The pragmatic tradition has lead to a not insignificant dimension of isolation, solipsism and self-sufficiency in the Norwegian criminal law science. This not only creates a tension with the fundamental idea of the sciences as an audience not narrowed in to the nation state and its interest, or similar, but open towards a universal audience, or to speak in Kantian terms, the court of reason. Also, the survival of our tradition seems to a certain part dependent on our ability to participate in the international discussions. There is, in sum, a deeper and more general moral motivation of the programme. Punishment is the most serious form of state power. It is the only part where the state intends to inflict harm on its citizens. In light of this, it is necessary to continue to investigate into the practices of criminal law in order to disclose bad arguments and ideas and thereby securing the moral content of criminal law. As the legal sciences are influential in the development of criminal law, its content and independence is of great importance. This calls for a high level of reflection and self-reflection in the criminal law science. Even though science in many parts should aim at improving our living conditions, we must at the same time not lose sight of the moral questions which answers make us, to speak once more in Kantian terms, worthy of our happiness. A deep, seeking attitude to our own social-political practises is necessary in order to accomplish that, not least in criminal law which in many ways represents the frontiers of our political morality. Only a theoretical approach to the criminal law is capable of keeping the field of criminal law open to such reflection.

 

 

 

Concrete Aims of the Programme

 

 

Following the comments of the motivation of the programme, the more concrete aims of the programme can be described as the following

 

It shall          

                     

-          result in three individual works, in English, capable of being contributions to the existing international criminal law literature

-          develop a broader discussion on the foundation, content and development of the criminal law in Norway, both within the criminal law science and in the public sphere more generally

-          develop, through different activities like workshops, an international network for criminal law researchers at the University of Bergen,

 

 

 

Short description of the different projects within the programme

 

 

Project 1: The General Part and its Structure

 

-          Jørn RT Jacobsen

 

 

This project aims at discussing the structure of the general part of the criminal law. The traditional approach in Norwegian criminal law is a categorisation of the criteria for criminal responsibility in two, the objective and the subjective parts. This categorisation follows a clearly “descartian” line of thought, sorting the criteria in respectively the objective or subjective categories due to whether they are referring to physical or mental dimension of the concrete act. Even though this categorisation at several points has obvious impact on the approach and presented solutions to different more or less specific questions within the general part, its deeper ideological and theoretical implications and presuppositions have not been discussed. The structure of the general part is only created through contributions based on investigations of specific subjects like omissions. As the criminal law science in other countries, like Germany, Sweden and Finland, all starts from different, and more well-grounded, categorisations, there are good reasons to investigate into this overall framework of the general part of the criminal law. It is at least theoretically good reasons to abandon the descartian dualism which seems to be underlying the traditional Norwegian approach. Of especial interest as an alternative, is here the influential German approach, dividing the criteria of responsibility within the general part into Handlung, Tatbestand, Rechtswidrigkeit and Schuld.

 

Central questions for this project will be a deeper understanding 1) of the impact and importance of the precise and theoretically adequate structure of the criteria of responsibility within the general part, 2) of a deeper understanding of the ideological foundation of the criteria of responsibility within the general part, 3) of the theoretical premises and tools for the construction of a categorisation of the criteria of responsibility of the general part. Through these questions the aim of the project is to be able to present at least a rudimentary sketch for an alternative, and theoretically better founded, categorisation of the criteria of responsibility within the Norwegian criminal law.

 

 

Project 2: The Internationalisation of Criminal Law – Consequences for the Criminal Law System

 

-          Linda Gröning

 

The aim of this particular project is to develop an understanding of the criminal law system in light of the increasing internationalised dimension of the criminal law. As the decisions on the content of the criminal law to an increasing degree is located at the international level, the traditional conceptualisation of the criminal law as a hierarchical system of norms, originating from the state as the sovereign power within the criminal law, is put under pressure. Rather than a structured national system, where the international aspects of the criminal law is viewed as an more or less peripheral annex, the criminal law is tending towards a multi-levelled system where there are several decisionmakers, and the system of norms is rather to be described as consisting of fragmentised and overlapping norms.

 

The question is then what impact this development of the criminal law system has on our traditional understanding of the criminal law system. Does the entire conceptual framework have to be re-written in order for us to capture the current changes within the criminal law system and to respond to them in an adequate way? And, in case, what new theoretical and ideological problems does this new conception of the criminal law system further generate? The project will focus on discussing and designing a conceptual and institutional background in order to make ground for further research in criminal law. The project will put special weight on the structural and constitutional relationship between the national criminal law system and the developing EU criminal law, but also on the other dimensions evolving from the internationalisation of criminal law, like e.g. the International Court of Criminal Justice (ICC) and the UN system.  

 

 

 

 

Project 3: Criminal Law Theory and the Principles of Criminal Law

 

-          Position not yet filled, currently advertised

 

 

The third project is supposed to, in a similar way as the other two projects, contribute to the development of a theoretical approach to the criminal law. Within this starting point, the applicants are allowed a certain freedom to address the topic which, in the applicants view, is best suited to contribute to the development of a theory of criminal law. Examples of sought after projects are a) methodological investigations concerning the idea and qualities of a criminal law theory, as opposed to more pragmatic approaches to the criminal law, b) investigations into the conceptual framework or core principles of the criminal law aiming at informing the design of a criminal law theory, c) investigations into contemporary challenges to the criminal law system, like e.g. the risk society and the related extensive criminalisation of endangerment, or combinations of these approaches (a-c).

 

 

Additional, overreaching questions:

 

An important question, reaching over all of the individual projects, is why the criminal law science should strive towards creating theories as foundational elements of the understanding of the criminal law.

 

One obvious answer, which is of importance for the programme, is that the theoretical approach in the end gives better answers as only this approach is able to secure the coherence of criminal law and, closely connected, to secure the realisation of the founding principles of criminal law. It is from a scientific viewpoint difficult to accept an understanding of criminal law where the different elements (possibly) contradict each other or are in another way not possible to unite. In addition, both of these qualities are in turn important in order to secure the moral content of the criminal law (see also above on the motivation of the programme). Both the desired qualities of a coherent and a principled criminal law are, however, in need for further clarification. How should one at closer view understand and be guided by these qualities in the work of developing a complete criminal law theory? At an even deeper level one could question the concept of knowledge, the very aim of science itself. What is it that distinguishes knowledge from one the one side, simple information circling in different spheres, and, on the other, settled dogmatic viewpoints? The traditional pragmatic Norwegian approach has for example its roots in a utilitarian line of thought and, beneath it again, a view upon knowledge stemming first and foremost from the British empiricism. This programme, aiming towards developing a theory of criminal law, should for its part be founded in a different view upon knowledge, for example one that takes the Socratic roots of the scientific seeking of knowledge seriously and which is able to draw upon the approaches towards knowledge that could be found in contemporary philosophy and sociology. Important incentives can further be found in the analytical philosophy, where focus is on language and argumentation as distinguishing scientific qualities and from this point of view explicate argumentative standards for the building of the theory of criminal law.

 

Regardless how these tentative viewpoints are to be developed, the importance of this subject can hardly be overestimated. This overreaching question concerning the concept of knowledge is for example, given the discussions within the philosophy of science concerning the future of the sciences and the university, of great importance for the future direction of the research carried out in these institutions. It is of importance that the criminal law science, like all other scientific fields, is capable of relating to this discussion. Given the importance of this question for the entire programme, this question will be a central theme in the discussions within the group, and the group and its participants shall, if possible within the given timeframe, produce texts regarding this question.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[i] Johs. Andenæs: Alminnelig strafferett, 5. edition by Magnus Matningsdal & Georg Fredrik Rieber-Mohn (Oslo, 2004) p. 276, translated by the authors of this document.